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Fengya v. Fengya

Decided: February 23, 1978.

FLORENCE FENGYA, AS NEXT FRIEND OF BARBARA FENGYA, A MINOR, PLAINTIFF-RESPONDENT,
v.
WILLIAM FENGYA, AND THE HOME INDEMNITY COMPANY, A CORPORATION AUTHORIZED TO TRANSACT BUSINESS IN NEW JERSEY, DEFENDANTS-APPELLANTS



Halpern, Larner and King. The opinion of the court was delivered by Halpern, P.J.A.D.

Halpern

This appeal presents an issue of first impression in New Jersey, namely, whether counsel fees are allowable under R. 4:42-9(a)(6) in an action against a surety company on a guardian's bond. The trial judge allowed counsel fees, and we now reverse.

The undisputed pertinent facts follow. William Fengya, father of his minor daughter Barbara, was appointed by the Passaic County Surrogate as guardian of Barbara's funds totalling $2,000 which she had recovered in a negligence suit. A guardian's bond of $2,000 was executed by the guardian and appellant Home Indemnity Co. binding themselves to the Superior Court of New Jersey, and filed with the surrogate in accordance with N.J.S.A. 3A:7-1(d). The bond was conditioned upon William Fengya's faithfully executing

his guardianship according to law. If he complied, the bond was to be void, otherwise it was to remain in full force and effect.

Over a period of about ten years William Fengya withdrew all but $6.46 of Barbara's funds and absconded. None of the moneys withdrawn were ever used for Barbara's benefit. No accounting was ever filed and, prior to the institution of these proceedings by plaintiff Florence Fengya, mother of Barbara as her next friend, no court order was ever entered to compel appellant to pay under the bond.*fn1 Nor did appellant ever disclaim responsibility on the bond. Its efforts, after learning of the misappropriation, were directed toward ascertaining the facts.

Following the institution of these proceedings a consent judgment was entered for appellant to pay $2,000 to a substitute guardian appointed by the court. We assume there has been compliance therewith. Subsequently, plaintiff's attorney applied for counsel fees and costs, which were allowed on the authority of R. 4:42-9(a)(6). This appeal is concerned only with that determination.

The rule provides:

4:42-9. Counsel Fees.

(a) Actions in Which Fee is Allowable. No fee for legal services shall be allowed in the taxed costs or otherwise, except

(1) In a matrimonial action, * * *

(2) Out of a fund in ...


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